Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Yesterday’s oral argument in Mims v. Arrow Financial Services, LLC started with a surreal detour from the basic jurisdictional principles examined by the courts below and the parties in their briefs. At issue in the case is whether the provision in the federal Telephone Consumer Protection Act (the “TCPA”) creating a private cause of action that “may” be brought in state court implicitly divests federal courts of jurisdiction.

Instead of considering the requirements for an action “arising under” federal law for purposes of the general jurisdictional statute, the Court was directly concerned with clogging up federal courts with cases better suited to state small claims court. Chief Justice Roberts in particular was preoccupied with the notion that Congress’s creation of a “state cause of action” seems to imply that there is no “federal cause of action,” and thus that the cases can be brought only in state court – whatever the jurisdictional regime might be.

The other topic of interest to the Justices was the possibility that state courts could prevent the cause of action through local laws. Although Mims argued that these restrictions would not limit the authority of federal courts, the Justices seemed troubled by the idea that Congress would permit state legislatures to limit the cause of action in state court but that the action would proceed unhindered in federal court.

But the argument veered back to more conventional grounds when the counsel for Arrow Financial Services rose. Justice Kagan immediately secured his acknowledgment of the core background principle: federal jurisdiction exists when federal law creates a cause of action, absent some Congressional action removing that jurisdiction. Indeed, she went so far as to suggest that it would be “momentous” to hold federal jurisdiction lacking for these cases. Justice Sotomayor seemed particularly troubled by the oddity of Congress stepping in to limit telemarketing, presumably because it thought the states were too quiescent, and then leaving plaintiffs to the vagaries of state jurisdiction.

Similarly, Justice Ginsburg chimed in to note that Congress made federal jurisdiction “exclusive” in suits brought by attorneys general; she pointedly suggested that the absence of an “exclusive” grant of state jurisdiction over the private right of action suggests that parallel federal actions are permitted. The high point of the argument – perhaps most clearly signaling the result – was Justice Scalia’s comment that it “gets our hackles up * * * when you are telling us we have been ousted of jurisdiction.”

At the end of the day, despite the detour at the beginning of the argument, the Court seemed to end where the briefs left it: following Justice Holmes’s dictum that a cause of action arises under the law that creates it. Although the Court might comment on the oddity of this particular statute, the argument offers no reason to expect anything other than the reversal called for under traditional rules of federal jurisdiction.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]